Balkishun Singh and Others vs Choudhary Deosaran Singh @ Deosaran Singh and Others

S.C. Misra and G.N. Prasad, JJ.—This appeal by the plaintiffs concerns a suit for specific performance of a contract by defendants Nos. 1 and 2. The necessary facts of the case have been set out in our order dated the 10th of December, 1964, remanding the case to the trial Court for a finding as to whether defendant No. 1 was in possession of more than 40 acres of land on the 5th of June, 1948, when he granted a lease in favour of the plaintiffs in respect of 23.14 acres of land. There was a stipulation in the lease that the plaintiffs would have a right to obtain a permanent lease on the expiry of the period of one year mentioned in the lease granted to them by defendant No. 2. The plaintiffs made a prayer for grant of a permanent lease by defendant No. 1; but the latter refused to comply with the request. The plaintiffs had to file the present suit giving rise to this appeal, accordingly to compel defendant No. 1 to grant a permanent lease in their favour.

The trial Court decreed the suit of the plaintiffs in terms of Section 21-A of the Bihar Tenancy Act which became operative on the 12th of June, 1948. Although the Court came to a finding that defendant No. 2 held power of attorney from defendant No. 1, it held that he had no authority to grant a permanent lease in respect of the land of defendant No. 1, which he was entitled to deal with in terms of the power of attorney.

It appears that, in the course of the trial, defendants Nos. 1 and 2 entered into a compromise with the plaintiffs, acknowledging the right of the plaintiffs to the land settled with them by defendant No. 2. Defendant No. 3 was also it pleaded in the suit because defendant No. 1 settled 6.69 acres of land in his favour under a mukarrari patta, which was comprised in the grant in favour of the plaintiffs by defendant No. 2. Since he was affected by the judgment of the learned Additional Subordinate Judge, who tried the suit, he came up in appeal to this Court.

The learned single Judge, who heard the appeal, however, set aside the judgment of the learned Additional Subordinate Judge, and dismissed the suit of the plaintiffs. Relying upon the provisions of Section 21-A of the Bihar Tenancy Act, referred to above, which we have set out in the remand order, he held that the plaintiffs could not take advantage of the provisions of Section 21-A of the Act, inasmuch as there was no clear evidence that defendant No. 1 possessed more than 40 acres of land on the 5th of June, 1948 when the lease for one year was granted in favour of the plaintiffs by defendant No. 2.

In this Letters Patent appeal, however, learned Counsel for the appellants raised the question as to the correctness of the view of the learned single Judge as, according to learned Counsel, there was evidence on the record to show that, on the relevant date, defendant No. 1 was possessed of a large area of bakasht land, so that there was no reason why the benefits of Section 21-A could not be available to the appellants. Even at the risk of repetition, part of Section 21-A may be quoted here.

21-A. (1) Every person, irrespective of whether he is a settled raiyat of a village or not, shall have a right of occupancy in all land for the time being held by him as a raiyat in that village:

Provided that no person who is not settled raiyat of a village shall have any such right of occupancy in any bakasht land settled with him by a proprietor or tenure-holder whose total acreage of such land in his possession at the date of settlement does not exceed forty acres unless such settlement has been made by a registered instrument:

Provided further that in the case of the said proprietor or tenure-holder, the provisions of this Section shall have no effect until after the expiration of six months from the date of the commencement of the Bihar Tenancy (Amendment) Act, 1947 (Bihar Act 23 of 1947).

Since Mr. Lalnarayan Sinha for the respondents urged that the position was not quite clear, we ordered a remand of the case to the trial court for recording a clear finding in terms of acres as to whether defendant No. 1, who was the proprietor of the settled land, was possess ed of more than 40 acres of land on the 5th of June, 1948. The finding has been returned by the learned Additional Subordinate Judge, 1st Court, Sasaram, and he has held:

On a consideration of the entire oral and documentary evidence and circumstances, I accept the contention on behalf of plaintiffs that defendant No. 1 was possessed of considerable bakasht lands on or about the date when the alleged settlement was made in favour of predecessor of the plaintiffs. I would, therefore, decide this issue in favour of the plaintiffs. I hold that defendant No. 1 had in his possession more than 40 acres of bakasht lands on or about the 5th of June, 1948. The issue is accordingly answered in the affirmative.

In view of this clear finding, this Letters Patent appeal from the judgment of the learned single Judge must succeed. Learned Counsel for the respondents has not been able to make any substantial argument that the finding returned by the learned Additional Subordinate Judge is incorrect.

The appeal is, therefore, allowed and the judgment of the learned single Judge is set aside, and it must be held that the suit of the plaintiffs was rightly decreed by the trial Court, whose judgment and decree are affirmed. The parties must bear their own costs of this Court.